Citation. Johnson v. Calvert, 5 Cal. 4th 84, 851 P.2d 776, 19 Cal. Rptr. 2d 494, 93 Cal. Daily Op. Service 3739, 93 Daily Journal DAR 6409 (Cal. May 20, 1993)
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After Johnson (Defendant) served as a surrogate mother for the Calverts (Plaintiffs), she refused to give up the child, who was not related to her genetically since the child was developed from reproductive cells donated by each of the Plaintiffs.
Synopsis of Rule of Law.
When a fertilized egg is formed from the reproductive cells of a husband and wife and is then implanted into the uterus of another woman, resulting in a child that is unrelated to her genetically, the natural parents are the husband and wife.
Facts.
The Calvertts (Plaintiff) turned to surrogacy because they could not have children after Crispina’s (Plaintiff) uterus was removed. Since Crispina’s (Plaintiff) ovaries could still produce eggs, the Plaintiffs signed a contract with Johnson (Defendant) which provided that an embryo created by Mark’s (Plaintiff) sperm and Crispina’s (Plaintiff) egg would be implanted in Defendant. Defendant relinquished all parental rights to the child, agreeing to accept payment for her services in a series of installments. Defendant later demanded the balance of the payments due in order for her to release the child. The Plaintiffs filed suit, seeking a declaration that they were the legal parents of the unborn child. After the child’s birth, Defendant was granted temporary visitation rights, even though blood tests excluded her as the genetic mother. The trial court ruled that the Plaintiffs were the child’s genetic, biological, and natural father and mother and terminated Defendant’s rights to visitation. The court of appeal affirmed, and Defendant appealed.
Issue.
When a fertilized egg is formed from the reproductive cells of a husband and wife and is then implanted into the uterus of another woman, resulting in a child that is unrelated to her genetically, the natural parents are the husband and wife.
Held.
When a fertilized egg is formed from the reproductive cells of a husband and wife and is then implanted into the uterus of another woman, resulting in a child that is unrelated to her genetically, the natural parents are the husband and wife. The presentation of a blood test as evidence and proof of having given birth are both ways of establishing maternity. However, when the two ways do not coincide in one woman, under state law, the natural mother is the one who intended to bring about the birth of the child whom she intended to raise as her own. From the beginning, Plaintiff intended to be the child’s mother. It is safe to say that Defendant would not have been given the opportunity to become pregnant or deliver the child if she had made obvious her own intent to be the child’s mother prior to implantation of the fertilized egg. Affirmed
Dissent.
(Kennard, J.) The majority’s resort to “intent” to break the “tie” between the genetic and gestational mothers is unsupported by statute and is ill advised. The best interests of the child is the standard that should be applied, and which is most protective of child welfare. Application of the majority’s rule of intent will not serve the child’s best interests in every case. The court of appeal’s judgment should be reversed.
Discussion.
In its discussion, the majority applied certain portions of the Uniform Parentage Act and the Evidence code to make its determination of parentage. As a means of determining parentage, the court saw no clear legislative preference in the Act between blood-testing evidence and proof of having given birth. California law recognizes only one natural mother, despite advances in reproductive technology rendering a different outcome biologically possible. The court declined to consider the contention of amicus curiae, specifically, that the court should find that the child has two mothers.
